Fresh and Easy Neighborhood Market, Inc., 28-CA-064411

• Court: National Labor Relations Board
• Writing for the Court: Mark Gaston Pearce Chairman.
• Citation: 361 NLRB No. 12
• Parties: FRESH AND EASY NEIGHBORHOOD MARKET, INC. AND MARGARET ELIAS
• Docket Number: 28-CA-064411
• Decision Date: 11 August 2014

361 NLRB No. 12

FRESH AND EASY NEIGHBORHOOD MARKET, INC. AND MARGARET ELIAS

No. 28-CA-064411

United States of America, National Labor Relations Board

August 11, 2014

CHAIRMAN PEARCE AND MEMBERS MISCIMARRA, HIROZAWA, JOHNSON, AND SCHIFFER

DECISION AND ORDER

Mark Gaston Pearce Chairman.

This case raises the issue of whether an employee was engaged in “ “ concerted activity” for the purpose of “ mutual aid or protection” within the meaning of Section 7 of the National Labor Relations Act when she sought assistance from her coworkers in raising a sexual harassment complaint to her employer. The judge found that she was not, and the Acting General Counsel excepts.^[1] We find that the employee was indeed engaged in concerted activity for the purpose of mutual aid or protection. We also agree with the Acting General Counsel that, to the extent the Board's divided decision in Holling Press, Inc., 343 N.L.R.B. 301 (2004), would require a finding that the employee's activity was not for mutual aid or protection, that case--which lies far outside the mainstream of Board precedent--should be overruled. Nevertheless, in the particular circumstances of this case, we agree with the judge that the employer did not violate Section 8(a)(1) when it questioned the employee about why she obtained witness statements from her coworkers and instructed her not to obtain additional statements.

I. FACTS

On August 24, 2011, ^[2] employee Margaret Elias, a cashier at the Respondent's grocery store, asked supervisor Bruce Churley if she could participate in training related to the sale of alcohol, known as “ TIPS.” Churley told her to write a note to him on a whiteboard in the breakroom, which Elias did on August 25. Her message read, in relevant part: “ Bruce . . . Could you please sign me up for TIPS training on 9/10/11?”

On August 26, Elias saw that the word “ TIPS” had been changed to “ TITS” and that a picture of a worm or peanut urinating on her name had been added to her original whiteboard message. Elias asked Michael Anderson, her team leader, about filing a sexual harassment complaint and showed him the whiteboard. When Anderson asked why she would want to do so, Elias left the breakroom, angry at his reaction. Afterward, Anderson telephoned Churley and, when informed of Elias' plan to file a sexual harassment complaint, Churley told Anderson to take a photograph of the altered whiteboard message and erase it.

That same day, Elias hand copied the whiteboard picture and the altered message to a piece of paper.^[3] She asked Anderson and two coworkers, Krista Yates and Victoria Giro, to sign the document. All three did so. Regarding the substance of Elias' conversations with those employees, the credited evidence establishes the following: ^[4] Before Anderson signed, Elias told him that she wanted to depict what was on the whiteboard and to file a sexual harassment complaint in connection with that content. Likewise, before Yates signed, Elias indicated to her that she wanted to file a complaint.^[5] When Giro signed the document, she knew Elias was upset by the whiteboard alteration and, at some point during their conversation about the document, Elias mentioned wanting to file a complaint.^[6] Giro, who testified that she personally found the whiteboard alteration inappropriate, suggested that Elias report the matter to Churley so he could review the breakroom cameras, find out who altered Elias' message, and take appropriate corrective action. As found by the judge, during these conversations Elias was loud and angry.

At the time that Anderson, Yates, and Giro signed Elias' document, only the hand- drawn picture and the altered whiteboard message appeared on the paper. At some later point, Elias added the following statement: “ Someone changed the board to ‘ TITS' instead of TIPS and [sic] and put a worm pissing on my name. I take this as sexual harassement [sic]. This has been on the [b]oard since I got here at 2PM.” Elias testified that although she did not intend that statement to be a joint complaint, “ I was offended and I believe that the other girls were offended too. And it just seemed that if we were to file a harassment charge that it wouldn't happen again.” Elias also testified that she felt the altered message was “ sexual-based harassment” for her and the two other women who were working that night.^[7]

Later on August 26, Churley returned to the store and saw the photograph of the altered whiteboard that Anderson had taken. Churley then reviewed the breakroom's video footage and identified Gary Hamner as the employee who altered Elias' whiteboard message. Churley emailed Employee Relations Manager Monyia Jackson to report the incident. He also spoke to Anderson, Giro, and Yates about Elias' request that they sign her handwritten reproduction of the altered whiteboard message. The three stated that they believed they were only witnessing that Elias' reproduction was correct, that they did not want to help her bring a sexual harassment complaint, and that they felt forced to sign the document. Nonetheless, Giro testified that she would not have liked the whiteboard alteration if it had happened to her and thought that management should have been notified in some way so that disciplinary action could be taken. In fact, Giro testified that, the day after she signed Elias' document, she went to Churley and told him that she thought the whiteboard alteration was inappropriate and that she hoped he would “ take care of it.”

In the following days, Yates made a formal complaint against Elias for “ “ bullying” her into signing the statement showing the reproduced whiteboard message and accused Elias of altering the statement after Yates signed it. In addition, Hamner complained that Elias cursed at him upon his arrival to work on August 26.

Employee Relations Manager Jackson then began an investigation into the whiteboard incident and the complaints against Elias. After interviewing Anderson, Yates, and Hamner, Jackson telephoned Elias on August 31.^[8] Jackson spoke to Elias about her sexual harassment complaint, as well as her coworkers' complaints against her. When Jackson questioned Elias about why she felt that she had to obtain her coworkers' signatures on the statement, Elias responded that it was for her own protection. Jackson also instructed Elias not to obtain any further statements so that Jackson could conduct her investigation into the incident. She told Elias, however, that Elias could talk to other employees and ask them to be witnesses for her. Elias was never threatened with and did not receive discipline for her actions. Upon completing the investigation, Jackson concluded that the whiteboard alterations were inappropriate, disciplined Hamner for making the alterations, informed Elias of her decision in writing, and assured Elias that she would be protected against retaliation. Jackson found no merit to Yates' and Hamner's complaints against Elias.

II. THE JUDGE' S DECISION

The judge found that the Respondent did not violate Section 8(a)(1) of the Act by questioning Elias about why she felt she had to obtain her coworkers' signatures on the hand-drawn reproduction of the altered whiteboard, or by instructing Elias not to solicit additional written statements from her coworkers. Relying largely on Holling Press, 343 N.L.R.B. 301, the judge reasoned that Elias had not been engaged in concerted activity for the purpose of mutual aid or protection at the time she sought her coworkers' assistance in raising a sexual harassment complaint to management. Instead, he found that Elias' complaint was personal and not shared by other employees, and that her goal in raising the issue to management was a purely individual one. In addition, the judge, observing that the Respondent did not bar Elias from speaking with her coworkers, found that Jackson's request that Elias take no further statements was not meant to deprive her of the right to engage in concerted activities, but rather to prevent disruption at the store. He thus concluded that the Respondent's questions and instructions to Elias were not unlawful.

III. DISCUSSION

A. Elias Engaged in Concerted Activity for the Purpose of Mutual Aid and Protection

To be protected under Section 7 of the Act, employee conduct must be both “ “ concerted” and engaged in for the purpose of “ mutual aid or protection.” Although these elements are closely related, our precedent makes clear that they are analytically distinct. See Summit Regional Medical Center, 357 N.L.R.B. No. 134, slip op. at 3 (2011). As described more fully below, whether an employee's activity is “ concerted” depends on the manner in which the employee's actions may be linked to those of his coworkers. See NLRB v. City Disposal Systems, 465 U.S. 822, 831 (1984); Meyers Industries, 268 N.L.R.B. 493, 497 (1984)(Meyers I), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 948 (1985), supplemented Meyers Industries, 281 N.L.R.B. 882, 887 (1986)(Meyers II), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). The Supreme Court has observed, however, that “ [t]here is no indication that Congress intended to limit [Section 7] protection to situations in which an employee's activity and that of his fellow employees combine with one another in any particular way.” NLRB v. City Disposal Systems, 465 U.S. at 835. The concept of “ mutual aid or protection” focuses on the goal of concerted activity; chiefly, whether the employee or employees involved are seeking to “ improve terms and conditions of employment or otherwise improve their lot as employees.” Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978).

Under Section 7, both the concertedness element and the “ mutual aid or protection” element are analyzed under an objective standard. An employee's subjective motive for taking action is...